Wilson v. Semling-Menke Co.

argue that because the foregoing evidence is unnecessary in
interpreting § 25-9, it was error for the court to admit and rely
on it.
[13] But as noted above, interpretation of a municipal ordi-
nance is a question of law, on which we reach an independent,
correct conclusion irrespective of the determination made by
the court below.24 We need not determine whether the district
court inappropriately relied on evidence in interpreting § 25-9,
because even if it did, such error was harmless—our indepen-
dent analysis of § 25-9 cures any such error.25
CONCLUSION
The Relators were not entitled to the writ of mandamus
ordering the city council to appoint and fund an Auditor.
Therefore, we affirm the order of the district court.
A ffirmed.
miller-lermAn, J., participating on briefs.
24 See Brunken, supra note 6.
25 See Alsobrook v. Jim Earp Chrysler-Plymouth, 274 Neb. 374, 740 N.W.2d
785 (2007).
mAtthew wilson And lindA wilson, AppellAnts , v.
semling -menke C ompAny, inC., Appellee .
766 N.W.2d 128
Filed June 12, 2009. 	No. S-08-985.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
Appeal from the District Court for Otoe County: rAndAll l.
rehmeier, Judge. Reversed and remanded.
Brian J. Adams, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellants.
V. Gene Summerlin, of Ogborn, Summerlin & Ogborn, P.C.,
for appellee.
928 	277 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

heAviCAn, C.J., C onnolly, gerrArd, stephAn, mCC ormACk,
and miller-lermAn, JJ.
heAviCAn, C.J.
INTRODUCTION
Matthew Wilson and Linda Wilson appeal the decision of
the Otoe County District Court to grant a directed verdict on
one of their two claims against Semling-Menke Company,
Inc. (SeMCO). The Wilsons filed a breach of warranty claim
for their allegedly defective windows under the Nebraska
Uniform Commercial Code (U.C.C.), Neb. U.C.C. § 2-313
(Reissue 2001), and a breach of written warranty claim under
the federal Magnuson-Moss Warranty Act (the MMWA), 15
U.S.C. §§ 2301 to 2312 (2006). SeMCO, the manufacturer,
had refused to replace or repair the windows after the Wilsons
claimed the windows leaked, causing damage to their home. At
the close of the Wilsons’ case in chief, SeMCO moved for a
directed verdict on both claims.
The district court granted SeMCO a directed verdict for the
breach of written warranty claim under the MMWA, finding
that the windows were not “consumer products” as required to
establish a prima facie claim. The jury found for the Wilsons
on the U.C.C. claim and awarded damages. The Wilsons now
appeal, arguing the district court’s decision to grant a directed
verdict on the MMWA claim was in error. We reverse the deci-
sion of the district court and remand the cause for proceedings
consistent with this opinion.
FACTS
Matthew and Linda purchased a vacant lot and built a house
in Otoe County, Nebraska, beginning in 1998. At the time, the
Wilsons owned and operated Genesis Homes, a corporation in
the business of building houses. Linda was the general contrac-
tor for homes built by Genesis Homes, which position involved
planning and overseeing the construction process as a whole.
The Wilsons purchased the lot for the purpose of building their
own home, and they acted as general contractors. The Wilsons
took out the construction loan in their own names. Genesis
Homes did not contribute funds.
WILSON v. SeMLING-MeNke CO. 	929
Cite as 277 Neb. 928

The windows in question were purchased at ABC Supply
Company (ABC) early in 2000, and Linda was assisted by
Jay Small in choosing the windows. Linda had previously
purchased supplies from ABC and had been assisted by Small
in the past in her capacity as general contractor for Genesis
Homes. The Wilsons eventually purchased 22 SeMCO win-
dows for installation in their new home.
At trial, Linda testified that she and Matthew were specifi-
cally looking for sturdy windows able to withstand high winds.
Linda communicated this desire to Small, as well as the fact
that the windows were for a private dwelling and not for a
home she was building for someone else. Small recommended
SeMCO windows. Linda had never heard of SeMCO windows
before that time. According to Linda, Small stated that he had
received training at the SeMCO factory and that SeMCO
windows were built to withstand high winds. Linda testified
that the reported ability of SeMCO windows to withstand high
winds, as well as the written warranty, influenced her decision
to purchase the windows.
In his deposition, Small testified that ABC supplies contrac-
tors and is a wholesale service, although ABC occasionally
makes retail sales. Small also testified that he had previously
dealt with Linda as a representative of Genesis Homes. Small
stated he was aware that the sale of the SeMCO windows at
issue in this case was for Linda’s private home. Small also
received a commission for the sale, which was apparently not
typical for a retail sale. At ABC, retail products are sold at a
15- to 30-percent markup from wholesale goods. The Wilsons
did not pay retail price.
The invoice in the record lists Genesis Homes as the pur-
chaser, although Linda testified at trial that Genesis Homes
did not purchase the windows and that she and Matthew pur-
chased the windows out of their own funds. Linda testified that
Genesis Homes had an account at ABC for several years before
purchasing the windows and that she did not have an account at
ABC in her own name. Linda stated that prior to building their
private residence, she had rarely used the account at ABC to
purchase anything for personal use. Linda testified that she had
experienced a delay in receiving and installing the windows
930 	277 NeBRASkA RePORTS

because of defects discovered by ABC. Linda also testified that
after installation, the windows leaked water and air, but the
Wilsons did not identify the windows as being the source of the
problem until 2003.
According to the Wilsons, the bulk of the damage took place
during a storm on May 22, 2004. Linda testified that water had
soaked through the carpeting in many areas of the house and
that there were no holes in the house and no broken windows.
Linda testified that she had seen water drip through the win-
dows and that they had cleaned up as best they could the night
of the storm. In addition to water on the carpet, drywall and
insulation had to be replaced or repaired.
The Wilsons contacted SeMCO after the storm, and 4 to 6
weeks later, SeMCO sent a representative to their home. There
was conflicting evidence at trial as to what the Wilsons told
the representative about when the windows began to leak, but
SeMCO never repaired or replaced the windows.
At the close of the Wilsons’ case in chief, SeMCO made
a motion for a directed verdict as to both counts. The district
court denied the motion as to the U.C.C. claim, but granted the
motion as to the federal claim. The district court found that as
a matter of law, the windows were not “consumer products”
as required for recovery under the MMWA. The jury found
for the Wilsons on the U.C.C. claim and awarded damages in
the amount of $27,246.35. The sole issue before this court is
whether the windows were “consumer products” as required
under the MMWA.
ASSIGNMeNT OF eRROR
The Wilsons claim the district court erred when it found that
the windows were not consumer products as a matter of law.
STANDARD OF ReVIeW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.1
1 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
WILSON v. SeMLING-MeNke CO. 	931
Cite as 277 Neb. 928

ANALYSIS
The MMWA provides a remedy for consumers who have
suffered damages from a defective product when that prod-
uct was covered by a written warranty. The purpose of the
MMWA was “(1) to make warranties on consumer products
more readily understood and enforceable and (2) to provide
the Federal Trade Commission (FTC) with means of bet-
ter protecting consumers.”2 Under § 2304 of the MMWA, a
warrantor must, at the least, remedy a defective product in a
reasonable amount of time, and if it cannot be repaired, the
consumer may elect either replacement or a refund. If the
warrantor fails to repair the product in a reasonable amount
of time, then the consumer may recover incidental expenses
associated with that failure. And under § 2310 of the MMWA,
a consumer may recover damages and attorney fees if he or
she prevails in a civil suit.
In order for the MMWA to apply, the purchaser must be a
“consumer” of a “consumer product” as those terms are defined
under the MMWA. Section 2301(1) defines “consumer prod-
uct” as “any tangible personal property which is distributed in
commerce and which is normally used for personal, family, or
household purposes (including any such property intended to
be attached to or installed in any real property without regard
to whether it is so attached or installed).” Section 2301(3)
defines “consumer” as
a buyer (other than for purposes of resale) of any con-
sumer product, any person to whom such product is
transferred during the duration of an implied or written
warranty (or service contract) applicable to the prod-
uct, and any other person who is entitled by the terms
of such warranty (or service contract) or under appli-
cable State law to enforce against the warrantor (or
service contractor) the obligations of the warranty (or
service contract).
In this case, the district court found that the windows sold
by SeMCO to the Wilsons were not consumer products as
2 Illinois ex rel. Mota v. Central Sprinkler Corp., 174 F. Supp. 2d 824, 827
(C.D. Ill. 2001).
932 	277 NeBRASkA RePORTS

defined under the MMWA. Relying in part on the Federal
Trade Commission regulations explaining consumer products,
the district court found the MMWA inapplicable. The perti-
nent Federal Trade Commission regulation, 16 C.F.R. § 700.1
(2009), further defines the products covered by the MMWA:
(a) The [MMWA] applies to written warranties on
tangible personal property which is normally used for
personal, family, or household purposes. This definition
includes property which is intended to be attached to or
installed in any real property without regard to whether
it is so attached or installed. This means that a product
is a “consumer product” if the use of that type of prod-
uct is not uncommon. . . . Where it is unclear whether
a particular product is covered under the definition of
consumer product, any ambiguity will be resolved in favor
of coverage.
. . . .
(e) The coverage of building materials which are not
separate items of equipment is based on the nature of the
purchase transaction. An analysis of the transaction will
determine whether the goods are real or personal property.
The numerous products which go into the construction of
a consumer dwelling are all consumer products when sold
“over the counter,” as by hardware and building supply
retailers. . . . However, where such products are at the
time of sale integrated into the structure of a dwelling
they are not consumer products as they cannot be practi-
cally distinguished from realty. Thus, for example, the
beams, wallboard, wiring, plumbing, windows, roofing,
and other structural components of a dwelling are not
consumer products when they are sold as part of real
estate covered by a written warranty.
(f) In the case where a consumer contracts with a
builder to construct a home, a substantial addition to a
home, or other realty (such as a garage or an in-ground
swimming pool) the building materials to be used are not
consumer products. Although the materials are separately
identifiable at the time the contract is made, it is the
intention of the parties to contract for the construction of
WILSON v. SeMLING-MeNke CO. 	933
Cite as 277 Neb. 928

realty which will integrate the component materials. Of
course, as noted above, any separate items of equipment
to be attached to such realty are consumer products under
the [MMWA].
(emphasis supplied.)
The Wilsons point to the language in 16 C.F.R. § 700.1(a),
which states that “any ambiguity will be resolved in favor of
coverage.” They point out that Linda purchased the windows
for a personal residence to be built using the Wilsons’ private
funds. Although Linda used Genesis Homes’ account at ABC to
purchase the windows in question, that was the extent to which
Genesis Homes was involved.
SeMCO, in turn, argues that the Wilsons purchased the
windows at wholesale price, utilizing Genesis Homes’ account
with ABC, and further contends that other courts have reached
similar decisions. The case relied upon by the district court in
reaching this decision, Illinois ex rel. Mota v. Central Sprinkler
Corp.,3 is readily distinguishable. In that case, the State of
Illinois bought indoor sprinkler systems specifically designed
to be used in institutional settings, such as mental institutions
or correctional facilities. The court found that the sprinklers
could not be considered a “consumer product.”
The court in Central Sprinkler Corp. made the point that the
sprinklers “[could not] be bought by consumers ‘over the coun-
ter’ and [were] not built into consumer dwellings or homes,
but rather into commercial or industrial buildings.”4 Under the
right circumstances, SeMCO windows could be considered to
be consumer products under that standard, because they could
be purchased in a sale “over the counter” and are designed to
be used in consumer dwellings and homes.
Weiss v. MI Home Products, Inc.5 is cited by SeMCO as
being dispositive. In that case, the windows were installed
during construction and plaintiffs purchased the finished town-
home. After discovering that the windows were defective,
3 Central Sprinkler Corp., supra note 2.
4 Id. at 831-32.
5 Weiss v. MI Home Products, Inc., 376 Ill. App. 3d 1001, 877 N.e.2d 442,
315 Ill. Dec. 690 (2007).
934 	277 NeBRASkA RePORTS

plaintiffs attempted to recover under the MMWA, claiming the
windows were “consumer products.” The court classified the
issue as “whether the windows installed in the new construc-
tion of a home are a ‘consumer product’ as defined by the
MMWA.”6 The court went on to state:
It appears that as to products that become a part of
realty, the distinction drawn is whether the product is
being added to an already existing structure or whether it
is being utilized to create the structure. The windows here
were installed to create the structure. We conclude that
the windows at issue here are not a consumer product.7
The Wilsons argue that Weiss is inapplicable because plain-
tiffs in Weiss purchased the finished townhome, whereas the
Wilsons purchased the windows separately. And, as already
mentioned, 16 C.F.R. § 700.1(e) indicates that building mate-
rials sold in an over-the-counter retail sale will be considered
“consumer products,” even if they are eventually integrated
into a finished building, and that it is the nature of the sale
that must be analyzed. Furthermore, 16 C.F.R. § 700.1(f)
appears to contemplate a contract between a buyer and a
builder, which was present in Weiss, but no contract was pres-
ent in this case.
Although there is some ambiguity as to whether the windows
can be considered “consumer products,” 16 C.F.R. § 700.1(a)
clearly states that “[w]here it is unclear whether a particular
product is covered under the definition of consumer product,
any ambiguity will be resolved in favor of coverage.” Under
these circumstances, the purchase of the windows resembled a
purchase “over the counter” more than it resembled a purchase
by a contractor, as is required under 16 C.F.R. § 700.1(e) for
building materials to be considered “consumer products.”
Linda clearly expressed her intent to use the windows in the
Wilsons’ private residence, and the salesperson at ABC testi-
fied he was aware of Linda’s intention. Linda used the Wilsons’
own funds to pay for the windows, rather than using funds
from the Genesis Homes’ account. The Wilsons relied on the
6 Id. at 1003, 877 N.e.2d at 444, 315 Ill. Dec. at 692.
7 Id. at 1005, 877 N.e.2d at 445, 315 Ill. Dec. at 693.
WILSON v. SeMLING-MeNke CO. 	935
Cite as 277 Neb. 928

existence of a written warranty when purchasing the windows.
They did not have a contract with a builder for the house as a
whole, but instead purchased the windows separately. We find
that under these circumstances, the windows purchased by the
Wilsons were “consumer products” as a matter of law.
CONCLUSION
The purpose of the MMWA is to protect consumers and
to give consumers a remedy for enforcing written warranties.
We find that under these facts, the Wilsons were consumers
who purchased the windows as consumer products in a sale
“over the counter” as defined by the MMWA. We therefore
reverse the district court’s order granting a directed verdict to
SeMCO on the Wilsons’ claim under the MMWA. We remand
the cause to the district court for proceedings consistent with
this opinion.
reversed And remAnded.
wright, J., not participating.
936 	277 NeBRASkA RePORTS